Introduction
In Reformers’ Unfulfilled Promises: Accountability Deficits in Argentinian Criminal Courts, Pablo Ciocchini discusses the impact of reforms in Latin American criminal courts that began in the late 1980s, namely the transition to the adversarial system of trial proceedings. Ciocchini argues that though this transition was intended to increase transparency and accountability, data from courtroom observations and in-depth interviews with judges, prosecutors, and defense attorneys in the Province of Buenos Aires indicate that these goals have not been fully met. After a brief review of the reform of Latin American criminal procedure codes, the article details how public oral trials, plea bargaining, and pre-trial hearings have all played a role in undermining due process, accountability, and transparency in this context.
Latin American Criminal Procedure Reforms
The transition of most Latin American countries from authoritarian regimes to democracies in the 1980s spurred the first wave of criminal court reforms in this region, in which the adversarial model was introduced. The goals of increasing transparency and accountability, as well as reducing the backlog in the courts, were intended to be achieved through the implementation of public oral trials, and by the division of investigative and adjudicative responsibilities between prosecutors and judges. Ciocchini argues, however, that because the legal actors “were predisposed to understanding criminal procedures and their roles within them in terms of the inquisitorial system in which they had been educated and socialized,” judges were hesitant to implement oral hearings in the pre-trial phase, and prosecutors continued to delegate investigations to the police.
To address the shortcomings of this initial reform, a second-wave of reforms took place in the 2000s which implemented pre-trial oral hearings and introduced court managers in order to allow judges to focus on their adjudicative, rather than administrative, responsibilities.
Overall, these reforms have resulted in a “shift away from written procedures toward oral hearings, the introduction of alternatives to trial (particularly plea bargaining), and the implementation of expedited trials and pre-trial hearings.” Though these changes may have some benefits, including shortening the time frame of legal cases, Ciocchini argues that they fail to achieve the increased accountability and transparency they promised.
Public Oral Trials
Interviewees recognized that public oral trials were advantageous over written procedures, due to their public nature and increased efficiency. Additionally, it was noted that such trials prevented the practice of delegating duties to lower-ranking officials, common prior to the reforms, by forcing judicial officials to attend hearings. The article notes, however, that though the number of public oral trials has substantially increased since the reforms, they are still a rare occurrence, with fewer than 1% of cases resolved in such a manner.
Ciocchini identifies four reasons that court actors have avoided public hearings. One commonly reported issue was that the oral hearings did not provide sufficient time to develop adequate legal arguments in which to ground legal decisions. Ciocchini observed that oftentimes, prosecutors and defense attorneys would simply re-enact debates that appeared to have originally taken place outside the courtroom, giving the impression that the outcome of the case had already been discussed among the attorneys and the judge, thus undermining the transparency of the process.
Organizational difficulties were also put forth as a reason for the limited use of public oral trials. Specifically, the coordination of all necessary actors – sometimes including victims, witnesses, experts, and police and correctional officers, in addition to the attorneys, judge, and defendant – could be such a challenge that hearings were often delayed or cancelled. Uncertainty regarding the outcome of a hearing also emerged as a factor influencing the use of public oral trials. Not only were attorneys unsure of how the judge would interpret the evidence and the law, but they were also concerned about the unreliability of witnesses. Specifically, attorneys mentioned that witnesses would often not appear in court, even when legally required to. Further, because of lengthy delays between an offense and a trial, there was great concern over the reliability of witness testimony.
Another reason for avoiding public oral trial was the fear that the case would ultimately be dismissed due to the statute of limitations. This would often happen either as a result of the court backlog, or because defense attorneys would purposely delay the case by raisings motions and appealing court decisions.
Plea Bargaining
Plea bargaining is a widely used diversion mechanism, with roughly three times more verdicts given through plea bargaining than through public trials. Ciocchini describes plea bargaining as highly problematic for a number of reasons. By avoiding a proper discussion of the evidence gathered by police, this mechanism legitimizes police intervention and weakens the transparency and accountability of the system. Moreover, the widespread use of pre-trial detention, and the delays defendants face if they choose to go to trial can mean that negotiations occur under threat and can easily be deemed extortive.
Some interviewees mentioned how the economic rationale involved in plea bargaining essentially served to delegitimize criminal procedure and punishment. Cioccini asserts that traditionally, legal doctrine specifies that sentences are to be determined by the particularities of a legal case. The use of plea bargaining, however, often brings case-load and disposal opportunities into the equation. Paraphrasing one defense attorney, Ciocchini writes “a dangerous aspect of this ‘give and take’ is that it loses sight of the goal of criminal procedure… this is perhaps why unscrupulous defence attorneys use plea bargaining to reduce their workload.”
Plea bargaining can also be used illegitimately as a defense strategy. The Argentinian legal system does not allow a defendant’s appeal to result in a change of verdict or sentence that is to his or her detriment. As a result, defense attorneys can agree to a plea bargain, then use an appeal to dispute evidence or make other arguments that could lead to the annulment of the case, or any better outcome for the defendant than was originally agreed upon.
Pre-Trial Hearings
Expedited trials and early pre-trial hearings for cases that involved a known perpetrator, i.e., a defendant who was caught “red-handed,” were implemented between 2004 and 2010 in the second wave of reforms. Intended to make the pre-trial stage of criminal proceedings more efficient, these mechanisms promoted early alternatives for the disposal of simple crime cases. Ciocchini states, however, that use of these mechanisms gives the impression that the criminal courts legitimize police investigations of everyday petty crimes, as well as creates “favourable conditions for promoting early negotiations between the parties and, consequently, settling the case before the pre-trial judge.”
While judges and prosecutors generally shared strong support for this system, defense attorneys shared numerous objections. In attempt to make more resources available for the prosecution of more serious and complex cases, this system allowed public prosecutors greater discretion to file some cases and plea bargain others. Though this did lead to a reduced workload and a decrease in the court backlog, interviewees stated that this did not result in greater prosecution of serious cases. Ciocchini suggests this may be because the quick timeframe of these trials requires court actors to constantly devote time to these cases, leaving little time to work on those that are more serious. The combination of this speedy processing and the fact that these cases are five times more likely to conclude in a plea bargain or other diversion mechanism than to go to trial, has led some interviewees to argue that such trials represented the “McDonaldization” of justice and impede human rights.
Another reason given for the lack of emphasis on serious crimes is the incapacity of police to investigate complex cases. Put bluntly, judges, prosecutors, and defense attorneys contest police conduct in general, and particularly the police force’s capacity to investigate crimes. This is especially problematic as these trials provide little opportunity for the defendant to dispute the charges and/or the evidence, since the court actors are under great pressure to reach an agreement in a timely manner.
Lastly, Ciocchini argues that these pre-trial hearings place a great deal of power in the hands of a single judge. In such trials, “the same judge decides over the legality of the arrest made by the police; whether to release the defendant or to maintain him/her on pre-trial detention; whether he/she should grant the arrest, search, or wiretap warrants requested by public prosecutors; and whether there are grounds for the public prosecutor’s request to take the case to trial.” The same judge can also order diversion and may pass the sentence in a plea bargain. Rather than strengthening the adversarial system as intended, Ciocchini states that this mechanism has essentially created quasi-inquisitorial judges.
NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).